Indian President’s dismissal of mercy petition, unanimous resolution passed by the Tamil Nadu Assembly and J&K chief minister’s latest tweet on Afzal Guru have brought to the forefront the debate on capital punishment. It, in fact, finds its fuel whenever courts pass verdicts in sensational cases sentencing the accused to the extreme penalty. However, at other times, the subject remains dormant. Interestingly, when a sessions judge of Madras sentenced to death all the 26 accused in Rajiv Gandhi assassination case, it went without a debate. The Supreme Court later set aside the sentence against 22 of the accused and confirmed death sentence against only four. Even then, the volatile subject escaped public debate.
However, the issue was winched to the fore when the Supreme Court handed down death sentence to a rapist whose mercy petition was dismissed by the President of India. The accused was finally hanged after a very long period. In the case of Rajiv Gandhi assassination convicts too, the situation is not any different as they’ve spent a very long period in cells with the noose hanging before their eyes.

It was my misfortune to have presided over the Supreme Court bench which pronounced the judgement as per which the four accused were sentenced to death.

I, in fact, don’t remember to have come across any other case in the history where such a record number of persons were sentenced to be hanged initially as in the Rajiv Gandhi assassination case. When I started my practice as an advocate, capital punishment was very frequently imposed and the law then required the sessions judge to give his special reasons for not awarding capital sentence. That law was changed and when life imprisonment became the normal sentence the sessions judge was required to give special reasons for awarding capital punishment!

The law was tightened by the Supreme Court further when it later ruled that unless the case is rarest of the rare, the court can’t impose the extreme penalty. This expression of “rarest of rare cases”, however, remained only in semantics.

The high courts and the Supreme Court had awarded death penalty whenever they felt the facts of a particular murder case showed more cruel overtones than others. Most murders being gruesome in character, it became the choice of a judge to employ his vocabulary to describe the offence in a particular case as rarest of rare cases. You’ll be surprised to know most murders in terrorists’ attacks were not counted as rarest of rare cases. But, whenever the victim of a murder happened to be a celebrity, then, the death penalty was awarded describing it as rarest of rare case.

The verdicts on Indira Gandhi’s assassination case, Rajiv Gandhi’s assassination case, General Vydiya’s murder case only confirm this. But none of the murder cases during 1984 Sikh riots was treated as rarest of rare cases. It was Justice Sarkaria who authored the well known judgment of the Supreme Court in Bachen Singh case who propounded the doctrine of the rarest of rare cases.

Articulating a standard for discerning such cases he said rarest of rare case is the one in which the alternative sentence of life imprisonment would be unquestionably foreclosed. I point out this because, something interesting happened when Supreme Court pronounced judgment in Rajiv Gandhi assassination case.

It was a bench of three judges with me, and Justice Wadhwa and Justice Mohammed Quadri. When it came to Nalini, the Supreme Court, of course, held she was also to be convicted. But, one of the three judges advancing his reasons held she could not be hanged to death.

However, the other two judges pronounced she was also liable to be hanged till she was dead. Thus, going by the majority judgement she was given capital punishment. The verdict, however, came up for a review when a petition was filed in the Supreme Court. As a senior judge of the bench, I told the advocates the scope of review was extremely limited. This was because the Supreme Court would not correct its judgment in review unless there was any error apparent on the face of the record. So, we decided to dismiss the review petition. However, I’d a new flash in my mind before the order on the review petition was pronounced. So I pronounced my order allowing the review petition on a new ground.
I said when capital penalty was imposed by two judges of a bench of three with one rooting for life imprisonment, then, the standard laid down for the rarest of rare cases doctrine would come to play. That’s to say the lesser alternative was not unquestionably foreclosed since one judge had voted against capital punishment. The other two judges didn’t agree. But, finally the constitutional head accepted what I said. Article 21 of the Constitution says no man shall be deprived of his life and liberty save in accordance with the procedure established by law. It means if the law is just, fair and reasonable then even your life can be taken away by that law. Capital punishment is killing a human being. Now the law is that killing a person is not an offence when it has the protection of law! Can a human being be killed with legal sanctity?

Jurists and human-rights activists have divided themselves into two classes, retentionists and abolitionists. How can you be exempted from punishment when you kill a person? What is a punishment? You punish your child for what? Evidently you punish a person to reform him.

In the past, punishment had a three-fold objective: reformation, deterrence and retribution. The notion of retribution is now regarded as outmoded and uncivilised. The tooth for a tooth and eye for an eye doctrine is not accepted by most modern day criminologists. Of the remaining two, the objective of reformation becomes out of range when you eliminate an offender.

Then, what remains is the theory of deterrence. I think the only justification advanced by retentionists is that capital punishment operates as a great deterrent. But, does it really? Even today public beheading of offenders is a dreadful sight required to be witnessed immediately after the Juma worship on Fridays in Saudi Arabia.

This means even after 1,000 years offenders have not come to an end in such countries where population is very insignificant. I do agree an offender escaping punishment encourages others commit similar offences. Yet, we need to conduct a study to find out whether capital punishment works as a real deterrent. As far as I know, no one has made a comparison on the impact of death penalty and life imprisonment.

But, we’ve a record relating erstwhile states Travancore and Cochin. Maharaja of Travancore was the first one to abolish death penalty in 1940. Later, the Maharaja of Cochin issued a similar proclamation in the same year. Later, when they became part of the Indian Republic in 1950, death penalty had to be restored. Meanwhile, criminologists made a comparison of the murders which took place in these two states between 1940 and 1950 and 1950 and 1960. They’re flabbergasted to find that the murder rate during 1950-1960 was much above than corresponding period when death penalty was not in the statute book. It shows death penalty would act as a deterrent is only a myth. Great philosopher Aurther Koistler narrates another interesting episode when in the earlier years death penalty was imposed even for pickpockets in England. Death penalty was introduced under the impression it would check pick-pockets and whenever the hang-man killed the convict the ritual was witnessed by huge crowds. After completing the function of one such hanging episode, the police received reports that the pockets of 63 persons were emptied as they enjoyed the public hanging. That again proves death penalty is not a deterrent. Now what remain are the inhuman aspects surrounding death penalty. First, it destroys the objective of reforming the offender. Second, it forces you foreclose yourself of the obligation to correct your decision, particularly, when it’s discovered later that decision was wrong.

Third, by killing the offender you’re really committing a murder though you protect it with the cover of law. Fourth, when you kill a person empowered with law, you only share the vengeful mindset of the murderer.

Fifth, you can’t, spiritually speaking, take a person’s life which you can’t give back. Sixth reason revolves around arriving at the decision of death penalty depending on eye witnesses’ account. From my experiences, both as an advocate and trial judge, I can say with authority eye witnesses are invariably coached up. The kith and kin of the victim would generally exaggerate the ferocity of the murder. This being so, your conclusion that a murder was committed in a very gruesome manner could be based on a fragile foundation. Besides, if you can count convicted offenders in murder cases, you’ll discover 90% belong to society’s lower strata. I don’t commit murder or perhaps none of you will. This is because of our upbringing. But, those who live in slums and those who’re the children of vagabonds might not know the value of life as much as the children of the educated class. Neither would they know spirituality. So, they resort to violence without any moral inhibition. After reading the book authored by Magsaysay winner Kiren Bedi, I’m convinced every offender can be reformed.

But, unfortunately neither government nor public pay its attention to the issue of human issue of reformation. They know only short-cut; liquidate the criminal and rejoice in the wild pleasure that brings about. Let me caution you from my long experience. It’s quite possible that guilty could be found innocent by court. But, sometimes, though very rarely only, even innocent might be found guilty.

This is the consequence of sensationalisation of cases. We’ve one solitary instance in history when a Judge found that the accused was actually innocent.

Yet, he’d to sentence him to death penalty to appease a hostile crowd. It happened 2000 years ago in Jerusalem city. Now, I don’t need to tell the name of that judge is Pontius Pilothouse and the name of the condemned prisoner was Yeshua the Nazarene!